An insider's view of what is really happening in the Harris County Criminal Courts

Tuesday, December 20, 2016

Victims, Phone Calls and Press Conferences

This morning, I was out driving around with my wife doing a little Christmas shopping when all of a sudden my phone started blowing up with repeated text messages from people saying that Harris County District Attorney-Elect Kim Ogg was talking about this blog in a press conference.

I wasn't able to watch the full conference until I got back home from running errands. The gist of what was being reported was that Ogg was accusing prosecutors Justin Keiter, Nick Socias, and Gretchen Flader of contacting victims of crime in an attempt to create an atmosphere of distrust with the incoming administration. Noting that all three prosecutors were not invited back under her administration, Ogg stated that the actions were unprofessional, possibly criminal, and that she would be doing a full investigation when she took Office on January 1st.

The first instance that Ogg spoke of dealt with the victim in a case who was allegedly unsatisfied with how the case had been resolved. Ogg noted that the victim had complained to Keiter, who told her to contact Ogg with any complaints.

Well, um, okay. So, we've called a press conference to say that a victim of a crime wasn't happy with how a case turned out? Not to be insensitive, but that happens some times. So, that victim calls the prosecutor (who has eleven days left to work as a prosecutor) and he tells her that she will have to take it up with the incoming administration because he won't be there?

Even if you assume the worst of Keiter, and let's just say for the sake of the argument that he delivered this in an unprofessional manner, I fail to see something that would merit an investigation. Victims routinely get upset when they don't agree with how a case is disposed of -- I once dealt with an angry mother who wanted Attempted Murder charges filed against a man who threw a rock at her son's car when he was speeding through the man's neighborhood -- and they will be more than happy to complain and complain as long as someone is listening. If Keiter punted on listening to it and told the victim to take it up with the Ogg Administration, that would be understandable under the circumstances.

But Kim followed up her initial statement by saying that Keiter posted things on Facebook and on this blog about notifying families of murder victims that he wouldn't be their prosecutor anymore. That's just false information. Keiter isn't on Facebook and to my knowledge, he has never posted on this blog. He certainly hasn't since being terminated.

The second instance that Ogg described was a call from the mother of a crime victim who had gotten a robocall from VINE telling her that the Defendant on the case had left the Harris County Jail. Ogg wasn't specific about whether or not the release was due to the Defendant making bond or leaving custody for other reasons. Ogg stated that the prosecutor on that case was Nick Socias, and he had not called the victim to let her know about the Defendant leaving custody.

Um, okay, so Keiter says something to a victim and Ogg is angry and now Socias doesn't say something to a victim and Ogg is angry. I'm failing to see exactly what Ogg's gripe with Socias is here. She never even clarifies what is going on with the case.

The third instanceis from the mother of a capital murder victim who said she had received an "anonymous phone call" from someone claiming to be a prosecutor who made "allegations that were political in nature and also gave her misinformation about the status of her case." Ogg states that she asked the woman who was handling the case and she said, "Gretchen Fladen [sic]." Ogg then goes on to point out that Socias and Flader are "domestic partners."

Still scratching my head on why we are having a press conference here.

So, the mother of the victim gets an anonymous call -- not alleged to have been from Flader -- from someone who made some political comments and gave some misinformation and we are now blasting Gretchen in a press conference? And you totally busted Gretchen and Nick to their parents if they didn't know those two were seeing each other!

In an email to the Press, Flader admitted to calling the mother, whom she said she communicates with frequently about the death penalty capital murder case she's been handling for the past few years. Flader said she called to tell the mother that both she and the other prosecutor on the case had been fired and new prosecutors would replace them. The mother, Flader said, was concerned about whether this would affect the prosecution's decision to seek the death penalty.

“I told her that I did not know, but that it was a possibility,” Flader said. “She asked who she needed to talk to and I told her that Kim Ogg is the new DA and would make the decisions. I told her I was sorry and wished her luck.”

You know what's wrong with that? Nothing.

Ogg stated that all of this was possibly illegal. I fail to see how. It doesn't sound like Ogg is particularly clear on what happened. She even wrote a letter to First Assistant Belinda Hill demanding that "all records [personal cell phone, personal and work email, etc.] from each person involved are immediately preserved so that a full investigation can be undertaken."
Okaaaaaaay, so you want Judge Hill to confiscate Justin, Gretchen, and Nick's cell phones and personal e-mails because they did . . . what, exactly?

In follow up questions, Kim backpedals and says "I'm not making a direct accusation . . . " and "I will not draw any conclusions about their participation or their guilt until I've had a chance to see the evidence."

What? You called a press conference and then didn't make an accusation? It sure as hell sounded like an accusation to me. Sounded like three of them, in fact. And then you followed it up with saying you haven't drawn any conclusions?!

You just held a freaking press conference. You might as well have wrapped up with, "I'm just kidding!"

Look, I understand that the transition from Devon Anderson to your Administration isn't going so smoothly. I agree with you that Devon shouldn't have stated that public safety was endangered by firing 38 prosecutors on Friday. Don't get me wrong, I don't agree with you firing all of those people, but I don't see a riot ensuing. I also agree with you that Devon should meet with you. I get that she's probably still mad about some stuff said on the campaign trail, but she should meet with you.

Kim, I really am sincere when I say that I want your Administration to succeed, but work with me, here. You can't fire that many people and expect them to love you for it. They are entitled to do a little grumbling, but you are now calling that grumbling "criminal" without anything at all to indicate that.

You can't go around threatening criminal charges every time somebody pisses you off.

You can do better. You should do better. You must do better.

And you owe Gretchen, Nick and Justin an apology for this press conference.

35 comments:

Nathan Hennigan
said...

I can help Kim Ogg with her "investigation." I also spoke to family members of murder victims after I found out I got fired. I told them 1) I got fired, 2) while I don't know who the new prosecutor on the case will be, there are still a lot of great prosecutors in the Office, and 3) my biggest regret was that I wouldn't be able to see the case through for them. I felt I owed them that explanation.

Prosecutors handling murders and capitals often have a close relationship with the families of victims. These are people who get thrown into the criminal justice system against their will and they look to the prosecutor to guide them through the hardest time in their life. They end up relying on you quite a bit. Although the legal relationship is different than a defense attorney and his client and family, I imagine there are many similarities. These folks rely on you and it is traumatic for them to lose the person that they trust with their loved one's case. It is entirely common and proper for a prosecutor to have that kind of conversation with a victim's family.

I wasn't trying to upset any of these folks. These three prosecutors surely didn't either. But you can understand why they get upset when the person who they have trusted for years with the most important thing in their life suddenly gets fired.

As for Ogg flying off the handle with an ill-advised and ill-informed press conference, I fear the folks left at the Office just got a preview of what will happen when Ogg senses she can get some political points by throwing you under the bus.

She should apologize to these folks and move on with her administration. She won the election and it is her prerogative to do whatever she is going to do. I don't see how acting in such a petty manner on the courthouse steps helps her accomplish any of her goals.

Well said. I think that Kim should be very aware that this press conference makes prosecutors nervous. It reminds us of the time Lykos put two well-respected prosecutors on blast by calling them incompetent in the media before she had all of the facts. Is Kim going to have these same knee-jerk reactions and call press conferences to publicly shame her prosecutors before she has all of the facts?

Lastly, I find it disgusting that she said in her press conference today that it is unprofessional to use victims as political pawns. Is that not what she did during the campaign, or has she already forgotten about "Jenny"?

A quick look at the Harris County District Clerk's website would have shown Kim that the defendant being released she received the phone call about actually made Bond on 12/18/16. She should be ashamed and immediately issue an apology to Nick.

Lord, please don't tell me the new DA operates off/from the same knee jerk, Twitter-esque playbook, ready to jump to conclusions with foot firmly lodged in mouth as the soon to be inaugurated POTUS. Not sure I'm ready for that in City government - having it firmly in place in Washington is going to be disheartening enough.

What we all saw today is a Wayne Dolchefino style "story". His entire career is built on making accusations and innuendos without facts. That's what our new DA, who insists we'll have evidence based cases only (because right now cases are tried without evidence, right?), did today: accusations and innuendos with no facts. Kim--you must cut Wayne off. He's doing you no favors, he cannot think like a lawyer, he's a crop duster leaving toxic damage everywhere and simply moving on without any consideration of long-term side effects. What I saw today was a newly elected official who acted on emotion and not reason or sound judgment. Serious rookie mistake.Murray-Don't try to placate Wayne because he can't be placated and it only feeds his ego that you'd try.

You should have heard the chatter inside of the DA's Office today during and after the press conference. My God, Kim has created an office full of enemies. I heard sinking ship so many times. And those are the ones that did not get fired.

As Murray has previously done, I too offer a "true confession." I, however, voted for and supported Devon Anderson. Unlike Murray though,I have a personal opinion of the abilities, philosophies, supervisory skill and demeanor of both Ogg and Anderson, based upon having worked with both individuals in their capacity as Assistant District Attorneys.

Not being a subscriber to Chronicle, however, I did not learn of the Friday noon E-mail massacre orchestrated by Ogg until December 19. Although Ogg and the Chronicle have deliciously characterized the massacre as "terminations", thus invoking the negative connotations associated with that word, I prefer to describe the event as non-offers of future employment with the Ogg administration. Obviously such a characterization does not sell papers nor does it have the desired political effect of imputing that the Anderson administration was composed of incompetent and unethical prosecutors, and was top heavy in non-productive administrators. The term "termination" was apparently chosen to imprint the proverbial scarlet letter on the careers of those selected prosecutors for eternity. One wonders since "termination" has been selected as the operative term by Ogg if constructively these prosecutors are entitled to and should not seek unemployment benefits?

That said, notwithstanding Ogg's protestations to the contrary, Harris County has lost a wealth of talent in the classless wisp of a "send" on an E-mail. That talent can not and will not be replaced by the wave of Ogg's hand. These were prosecutors who provided the requisite experience and guidance necessary for the development of newly hired prosecutors. I will not name the prosecutors not offered with - I find the recitation in the Chronicle likewise to be classless, but I have understood the objectives and motives of the Chronicle for years.

In my opinion Lykos set a high bar for her successors to overcome in destroying the morale of a once highly respected District Attorney's Office directed by such District Attorneys as Carol Vance and John B. Holmes, Jr. Clearly, based on the events of December 19 and her news conference of today, Ogg is off to a fast start in setting a new standard for morale evisceration.

Finally, a purely political observation. I believe it is disingenuous to merely assert that Ogg used "debacles as leverage" to oust a GOP incumbent in November. These alleged "debacles" acquired their "legs" from the non-objective view of the paper that is now glorifying these departures. To my knowledge, however, every county wide GOP candidate from D.A., to Sheriff, to District Court Judge lost in November, in all probability to Republican voters remaining home in protest of the Trump candidacy.Calvin A. Hartmann

Her facts were so false and all over the place that during her QA session. She accused Justin Keiter of stating on this blog that he had been contacting families and telling them he got fired. I think she was talking about when I told the Chronicle on Friday that I was doing that. So wrong person, wrong publication. Not to mention that there is nothing wrong with telling a victim's family you got fired as I explained above.

My other favorite part was when she said "this time of year is a very difficult time for any survivor of a capital crime."

Not sure if MB comments here, but I'd really like a defamation law expert to weigh in on this. How screwed is Kimbra here?

Listening, what I heard was "Here are some unsubstantiated but damaging things I've heard about these three named individuals, and calling a press conference is easier than finding out facts. Also, here's a fictious web comment that is part of Keiter's effort to deliberately sabotage public safety."

To me that seems actionable, particularly as to Keiter. But I'm just a prosecutor.

My take was Kim Ogg is being defensive because she knows the campaighn to defeat her has already started. I was not a fan of the Press Conference, but she knows her opponents will be coming after her like they came after Lycos. I don't think the three prosecutors did anything wrong. Devon's statement about endangering the citiznes of Harris County coupled with this probably made Ms. Ogg feel she needed to take pro active steps.

It is my recollection that there essentially is absolute immunity for a prosecutor in actions against that prosecutor under 42 USC 1983 for one's conduct in the course and scope of one's duties as a prosecutor. I would suggest, however, that defamation does not come within the normal scope of the duties of a prosecutor. Thus, it would seem that defamation would be actionable regardless of the status of the defamer.Calvin A. Hartmann

Unfortunately I apparently was not clear in my post. I was in no wise suggesting that immunity was available for Ogg since her assertions were clearly made in the capacity of a "plain vanilla citizen" and not in the capacity of a prosecutor. Obviously there is no retroactive immunity. Once the proverbial horse is out of the barn it is too late to close the barn door. My only point was intended to be was that defamation was actionable whether committed by a prosecutor or that "plain vanilla citizen" and that immunity did not lie in either instance. I am sorry to 6:18 p.m. for being unclear.

Ogg's actions reflect a belief that she can exert power over the office and employees for which she will not assume authority until January 1, 2017. That is a disturbing belief, particularly in the light of her apparent disregard for employee privacy rights, search and seizure law, employment law (notwithstanding employment at will for county employees) and the law of defamation. Moreover, it is ironic that the employees against whom she has leveled accusations will not be offered contracts by her on January 1, 2017. Again I believe that Ogg is off to a bad start, although not yet even in office. I hope for her sake and that of the office that she will turn things around, apologize to the affected individuals, and move on; otherwise it is going to be a tumultuous four years.Calvin A. Hartmann

I do not know Mr.Truitt, but since he has quoted an observation which I previously have made and thereafter asked a question, although it has never been my practice to respond to others on a blog (as I suspect that Murray well knows - I am not looking for "blog pals"), out of courtesy to Mr. Truitt I will respond to that question particularly in light of the probable motive giving genesis for the inquiry. The answer to Mr. Truitt's question is most definitely "YES."Calvin A. Hartmann

This witch-hunt and vendetta Kim Ogg (and the media) has engaged in in order to ruin Anderson’s career and reputation started the very first day she tired to run for election against Anderson. It is just absolutely sad, tragic and the farthest thing from professional. Now it is spewing over to the prosecutors who dare disagree with her. This is ridiculous! Enough is enough already.

Firing the 37 prosecutors 9 days before Christmas through an email? I know there are always regime changes when a new administration takes over but it would seem to me she knew exactly who would be let go long before now. Why wait and in the manor it was done in? It doesn’t show respect to the people who have devoted their careers to the field of criminal justice. Firing by email is cowardly, doing it right before Christmas makes one look coldhearted and ultimately makes it look like political revenge. There were better ways to handle this, IMHO. Furthermore, with the press conference held the other day, she is exploiting people for her own personal and political gain. Enough is enough. Anyone surprised? Innocent until proven guilty, anyone?? No, here she is the one making assumptions without the facts and says she will not discuss the issues with the prosecutors in question.

It all boils down to this:

Kim Ogg was so desperate to get elected; she said and did anything (and she will continue to do so) even when she KNOWS it’s not true. Having been in that office before, Ogg knows the things coming out of her mouth are untrue. She has run on both parties on the ticket once before-R and D and failed both times if that tells you anything, people did not like her on either side of the ballot before. She only won because she rode on the party ticket; just like all the other D’s. She had to run with corrupt, anti-American Soros behind her. That should have told every voter what they really need to know about her and who is going to be behind running the DA's office. When she was running she basically said that she will pick and choice the laws in which they follow and think should be enforced. That is not how it works. You do not get to choose what the office decides to try based on what you want. The Harris County District Attorney is there to pursue justice and enforce the law, not pick and choice what laws she enforces and upholds whether they agree with it or not. This is what Devon always did, hence the PP case. Maybe she forgot that in her 20 yrs away from being a prosecutor defending criminals?

Yes, we all know the criminal justice system has flaws and with the 116,000 cases filed a year that sometimes things happen but let me just say I will be especially praying for Harris County all around the board for the next 4 years.

Has Devon responded to the email she received from Kim on 12/16, inviting her to stay?

Yep, folks, that's the level of competence in KO's transition team.

That and cold-calling the spouse of one of the 38 the next day to recruit him for a position with the office. Seemingly forgetting that he was not only married to one of Kim's casualties (or lucky ones, depending on your perspective) but had also prosecuted daddy Ogg.

I'm not not exactly looking to hold your hand or anything Hartmann, and a simple yes or no would have done just fine. I was just wondering where your disdain for over-active -to-be office holders began, and where it ended. Glad to see you re consistent. Many are not, and that was my point.

About Me

I practice criminal law and criminal law only. I've been involved in the criminal justice system since I was in college, and I've been practicing in Houston for over 18 years.
Most people never have to come down to the Harris County Criminal Justice Center unless they have jury duty. This blog is meant to give the Outsider an inside view.
These are just my opinions. The opinions of the Commenters are also just their opinions and I don't endorse them. But (within reason), I want everybody to be able to have a forum to say what they want to say.